Rindahl, Randy v. State of South Dakota, et al

Filing 34

ORDER denying as moot 32 Motion for Reconsideration; denying as moot 32 Motion for Recusal; denying as moot 2 Motion; denying as moot 3 Motion; denying as moot 4 Motion to Appoint Counsel; denying 5 Motion for Leave to Proceed in forma pa uperis; dismissing 10 Motion to Amend/Correct; denying as moot 17 Motion; denying as moot 18 Motion for Preliminary Injunction. Rindahl's amended complaint is dismissed without prejudice subject to Rindahl's payment of the entire $350 filing fee. Signed by Chief Judge Karen E. Schreier on 9/30/2011. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
RANDY RINDAHL,

)
Civ. 11-4131
)
Plaintiff,
)
)
vs.
)
)
DAUGAARD, Governor, State of South
)
Dakota;
)
TIM REISCH, Sec. of Corrections, State )
of South Dakota Penitentiary (SDSP);
) ORDER DENYING IN FORMA
WEBER, Warden (SDSP);
)
PAUPERIS STATUS AND
SLYKHUS, Deputy Warden (SDSP);
) DISMISSING CASE WITHOUT
PONTO, Assc. Warden (SDSP);
)
PREJUDICE
VAN VORNE, Senior Major (SDSP
)
Jameson);
)
LINNIWEBER, Security (SDSP);
)
BAKER, Major (SDSP an Jameson);
)
J. MILLER, Lt. Security (Jameson);
)
DITTMONSON, Section Manager;
)
M. WAAGEMERSTER, Section Manager; )
J. OAKLEY, Physician Assistance
)
(SDSPHS);
)
J. SPURRELL, Health Care Manager;
)
TERMEER, S.C.O.
)
WILLIAMS, S.C.O.
)
BEAVER, Lt. Disciplainary Hearing
)
Officer;
)
D. YOUNG, Asst. Warden (Jameson
)
Annex);
)
JOHNSON, S.C.O.
)
ANDERSEN, S.C.O.
)
ANDREW E. COOPERMAN, Under
)
contract SDSP;
)
KAYLA TINKER, R.N. Administrator;
)
RIGIER, Dr. (SDSPHS);
)
JEFF LUTHER, M.D., Director
)
(SDSPHS);
)
DUREEN HOLLINGSWORTH, Sec. Dep’t )
Health.
)
)
Defendants.
)

BACKGROUND
Plaintiff, Randy Rindahl, is a prisoner at the South Dakota State
Penitentiary (SDSP) in Sioux Falls, South Dakota. Rindahl has filed this pro
se lawsuit pursuant to 42 U.S.C. § 1983, alleging various deprivations of his
civil rights by the above-named defendants. Rindahl initially filed the instant
lawsuit in the Western District of Wisconsin, but Judge Barbara Crabb
transferred the case to this district because she determined the Eastern
District of Wisconsin has no personal jurisdiction over defendants. See Doc.
29. Plaintiff wishes to proceed in forma pauperis. His amended complaint1 is
“screened” pursuant to 28 U.S.C. § 1915(e) and 1915A.2

1

Rindahl filed a complaint on February 15, 2011. Doc. 1. He filed an
amended complaint on March 21, 2011. Doc. 10. The amended complaint is
considered on screening.
2

28 U.S.C. § 1915(e)(2)(B)(ii) provides:

(2)

Notwithstanding any filing fee, or any portion thereof, that
may have been paid, the court shall dismiss the case at any
time if the court determines that –
(B) the action or appeal–
(i) is frivolous or malicious;
(ii) fails to state a claim on which relief may be granted; or
(iii) seeks monetary relief against a defendant who is immune
from such relief.

28 U.S.C. § 1915A provides in relevant part:
(a)

Screening.–The court shall review, before docketing, if
feasible or, in any event, as soon as practicable after
docketing, a complaint in a civil action in which a
prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity.
2

DISCUSSION
Rindahl’s Litigation History and Whether He Has Sufficiently Alleged
“Imminent Danger” for IFP Status
The Prison Litigation Reform Act provides:
In no event shall a prisoner bring a civil action or appeal a
judgment in a civil action or proceeding under this section if the
prisoner has, on 3 or more prior occasions, while incarcerated or
detained in any facility, brought an action or appeal in a court of
the United States that was dismissed on the grounds that it was
frivolous, malicious, or fails to state a claim upon which relief
may be granted, unless the prisoner is under imminent danger of
serious physical injury.
28 U.S.C. § 1915(g) (emphasis added).
Rindahl is a frequent litigant in the District of South Dakota. He has
been designated as a “three-strike” litigant who is ineligible for in forma
pauperis status in the absence of a sufficient claim of imminent danger of
serious physical harm. Rindahl’s previous claims of imminent danger have
been deemed inadequate or exaggerated.3 Rindahl’s lawsuits that have been

(b)

Grounds for dismissal.–On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of
the complaint, if the complaint–
(1) is frivolous, malicious, or fails to state a claim upon
which relief may be granted; or
(2) seeks monetary relief from a defendant who is immune
from such relief.

3

Rindahl v. Reisch, Civ. 10-4004 (D.S.D.) (In forma pauperis status
initially granted but later revoked based on Rindahl’s misrepresentations to the
Court; case dismissed for failure to state a claim upon which relief may be
granted pursuant to 28 U.S.C. §1915(e)); Rindahl v. Reisch, 10-4156 (D.S.D.)
(In forma pauperis status denied for failure to sufficiently allege imminent
danger of serious physical harm).
3

dismissed upon “screening” pursuant to 28 U.S.C. § 1915(d) or
§ 1915(e)(2)(B)(ii)4 are summarized below:
1.

Rindahl v. Class, Civ. 95-4207 (D.S.D.) Rindahl claimed the DOC
failed to adequately enforce its own policies. Judge Jones
dismissed the claim as frivolous pursuant to 28 U.S.C. § 1915(d).
Strike One.

2.

Rindahl v. Class, Civ. 96-4116 (D.S.D.) Rindahl claimed
unacceptable conditions in the SHU (special housing unit). Judge
Jones dismissed the claim for failure to state a claim upon which
relief may be granted pursuant to 28 U.S.C. § 1915(d). Strike Two.

3.

Rindahl v. Class, Civ. 96-4117 (D.S.D.) Rindahl claimed false
disciplinary reports were filed against him in retaliation for filing a
religious rights lawsuit. Judge Jones dismissed the claim for
failure to state a claim upon which relief may be granted pursuant
to 28 U.S.C. § 1915(d). Strike Three.

4.

Rindahl v. Weber, Civ. 08-4041 (D.S.D.) Rindahl claimed he was
raped by a prison guard in 2003 and that the incident was never
properly investigated by prison personnel. Judge Battey initially
denied IFP status because Rindahl failed to sufficiently allege
imminent danger. Judge Battey eventually allowed Rindahl to
proceed IFP, but nevertheless ultimately dismissed the case for
failure to state a claim upon which relief may be granted pursuant
to 28 U.S.C. § 1915(e)(2)(B)(ii). Strike Four. The Eighth Circuit
summarily affirmed Judge Battey’s decision.

5.

Rindahl v. Reisch, Civ. 10-4004 (D.S.D.) Rindahl claimed deliberate
indifference to a serious medical need (inattention to prison
doctor’s recommendation that surgery may be necessary on his
cervical spine). Rindahl was initially granted IFP status based on
his claims of imminent danger. His IFP status was revoked based
upon Rindahl’s misrepresentations to the court about the course of
medical care given by prison medical personnel. Rindahl’s case was

4

The former 28 U.S.C. § 1915(d) became 28 U.S.C. § 1915(e) when the
PLRA became effective in 1996. Atkinson v. Bohn, 91 F.3d 1127, 1128 (8th Cir.
1996).
4

dismissed for failure to state a claim upon which relief may be
granted pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii). Strike Five. The
Eighth Circuit denied IFP status on appeal.5
In addition to the above cases that resulted in “strikes” for purposes of
the PLRA, the following cases have been dismissed because Rindahl failed to
prepay the filing fee or failed to adequately allege imminent danger of serious
physical harm (which would have allowed him to proceed in the absence of
prepayment, despite his “three-strike” status) pursuant to 28 U.S.C.
§ 1915(g):
6.

Rindahl v. Weber, Civ. 09-4084 (D.S.D.) Rindahl claimed deliberate
indifference to a serious medical need. He alleged inadequate
recovery time related to a surgical procedure performed in 2007.
Judge Piersol denied IFP status because Rindahl failed to
sufficiently allege imminent danger of serious physical harm.

7.

Rindahl v. Reisch, Civ. 09-4085 (D.S.D.) Rindahl claimed Warden
Weber and others did not properly follow prison policy in
investigating a sexual assault allegedly perpetrated upon Rindahl
at some unspecified time in the past. Judge Piersol denied IFP
status because Rindahl failed to sufficiently allege imminent
danger of serious physical harm. Judge Piersol also noted the
claims were duplicative of those that were then pending in Civ. 084041.

8.

Rindahl v. Reisch, Civ. 10-4156 (D.S.D.) Rindahl alleged previous
sexual assaults perpetrated upon him at the SDSP were not
appropriately investigated by prison personnel. Judge Schreier

5

Judge Crocker’s order dated May 9, 2011 (Doc. 19) which cites Turley v.
Gaetz, 625 F.3d 1005 (7th Cir. 2010) and calculates Rindahl’s strike count as
two is noted. Turley is not binding precedent in the Eighth Circuit.
Nevertheless, under Turley all of Rindahl’s cases cited above as strikes remain
strikes because the cases were dismissed in their entirety and none of the
claims contained within them proceeded to adjudication on the merits.
5

noted the complaint was “nearly illegible” but nevertheless denied
IFP status and dismissed the complaint because plaintiff failed to
sufficiently allege imminent danger of serious physical harm. The
Eighth Circuit denied Rindahl’s application for IFP status on
appeal and dismissed the case for failure to prosecute.
"The Prison Litigation Reform Act of 1996 enacted what is commonly
referred to as the ‘three strikes’ provision, codified at 28 U.S.C. § 1915(g).
This statute provides that an inmate who has had three prior actions or
appeals dismissed as frivolous, malicious, or for failure to state a claim may
not proceed in a civil action in forma pauperis ‘unless the prisoner is under
imminent danger of serious physical injury.’ The statute's bar does not
preclude the inmate from filing additional actions but does deny him the
advantages of proceeding in forma pauperis.” Martin v. Shelton, 319 F.3d
1048, 1050 (8th Cir. 2003). Further, a complaint that makes “no allegation of
ongoing danger, other than conclusory assertions that defendants [are] trying
to kill [the plaintiff] by forcing him to work in extreme conditions despite his
blood pressure condition” is insufficient to invoke the imminent danger
exception. Id. Instead, specific allegations of ongoing serious physical injury
or a pattern of misconduct evidencing the likelihood of imminent serious
physical injury are necessary. Id.
An otherwise ineligible prisoner may proceed IFP only if he is in
imminent danger “at the time of filing.” Ashley v. Dilworth, 147 F.3d 715, 717
(8th Cir. 1998) (emphasis in original). Furthermore, "verbal threats and name

6

calling usually are not actionable under § 1983.” McDowell v. Jones, 990 F.2d
433, 434 (8th Cir. 1993). See also Smith v. Copeland, 892 F. Supp.1218, 1230
(E.D. Mo. 1995) (gestures and abusive language alone are not actionable
under § 1983); Ellis v. Meade, 887 F. Supp. 324, 329 (D. Me. 1995)
(threatening language by guards does not generally violate prisoners'
constitutional rights). Because verbal threats and abusive language are not
actionable under § 1983, they likewise may not form the basis of an imminent
danger exception to the “three strike” rule.
It is with these standards in mind that Rindahl's amended complaint in
this case has been reviewed to determine whether he is eligible for in forma
pauperis status under the imminent danger exception to the “three strike”
rule. Because Rindahl is a three-strike litigant and his amended complaint
does not meet the imminent danger exception, his amended complaint is
dismissed.
Rindahl’s claims in this pending suit arise from his assertion that he
was the target of retaliation from prison guards during the time he spent in
the Jameson Annex in 2010. Rindahl asserts that during the fall and winter
of 2010, he was assaulted on three separate occasions “at the hands of
correctional personnel” in retaliation for his prior lawsuits and grievances.
See Amended Complaint, Doc. 10 at ¶ 32. Specifically, Rindahl asserts that
he has been retaliated against for the filing of Civ. 08-4041 and Civ. 10-4156.

7

Rindahl asserts that throughout the fall and winter of 2010, defendants
verbally threatened and physically assaulted him in retaliation for filing these
suits.6
"[V]erbal threats and name calling usually are not actionable under
§ 1983." McDowell v. Jones, 990 F.2d 433, 434 (8th Cir. 1993). See also Smith
v. Copeland, 892 F. Supp.1218, 1230 (E.D. Mo. 1995) (gestures and abusive
language alone are not actionable under § 1983); Ellis v. Meade, 887 F. Supp.
324, 329 (D. Me. 1995) (threatening language by guards does not generally
violate prisoners' constitutional rights). Because verbal threats and abusive
language are not actionable under § 1983, they likewise may not form the
basis of an imminent danger exception to the “three strike” rule.
Rindahl also alleges that defendants physically retaliated against him
in addition to the verbal threats, but these claims are also insufficient to
allege imminent danger of serious physical harm. First, these allegations are
generally the same as the allegations Rindahl made in Civ. 11-4082 and Civ.
10-4156. In those cases, Rindahl alleged that several incidents of physical
abuse occurred during the same time frame (fall/winter 2010) as when he

6

Civ. 08-4041 was dismissed by the district court on August 11, 2009.
The Eighth Circuit summarily affirmed the dismissal on September 10, 2010.
Civ. 10-4156 was dismissed on October 26, 2010. In forma pauperis status
was denied and the named defendants were never served with the suit papers.
The Eighth Circuit denied in forma pauperis status on appeal on December 29,
2010.
8

was housed in the Jameson Annex. In his Report and Recommendation for
Civ. 11-4082, Magistrate Judge Simko noted that many of the claims in Civ.
11-4082 were similar to the claims that were deemed insufficient to state
imminent danger in Civ. 10-4156. “All of his allegations pertain to past
incidents and do not present evidence of ongoing serious physical injury or a
pattern of misconduct which evidences the likelihood of imminent serious
physical injury. At most, assuming Rindahl’s claims are true, he has shown a
pattern of offensive behavior.” See Rindahl v. Daugaard, et. al. Civ. 11-4082,
Report and Recommendation, Doc. 48.
Additionally, Rindahl’s claims of retaliation are repetitive of claims he
made in 11-4082, and those claims were dismissed with prejudice based
upon Rindahl’s fraudulent conduct in that case. Rindahl’s motion to proceed
in forma pauperis is DENIED. His amended complaint is dismissed without
prejudice.
CONCLUSION
Rindahl has failed to overcome his “three strike” status. These same
claims of retaliation which allegedly occurred in the Jameson Annex in 2010
have previously: (1) been found insufficient to state imminent danger of
serious physical harm; and (2) have been dismissed with prejudice after a
finding by clear and convincing evidence that Rindahl perpetrated a fraud on
the court in Civ. 11-4082. Therefore, it is

9

ORDERED that Rindahl’s Motion for in forma pauperis status is
DENIED;
IT IS FURTHER ORDERED that the amended complaint is DISMISSED
without prejudice subject to Rindahl’s payment of the entire $350 filing fee;7
IT IS FURTHER ORDERED that all pending motions are DENIED as
moot.
Dated September 30, 2011.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE

7

The docket indicates Rindahl paid $7.50 of the filing fee while the case
was pending in the Western District of Wisconsin pursuant to that District’s
system that requires payment before “screening” will occur.
10